33 F.

3d 52

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of

unpublished dispositions is disfavored except for establishing
res judicata, estoppel, or the law of the case and requires
service of copies of cited unpublished dispositions of the Fourth
Circuit.
NATIONAL ASSOCIATION FOR THE ADVANCEMENT
OF COLORED PEOPLE,
INC., a New York nonprofit corporation; Columbia, South
Carolina Branch of the NAACP, INC.; Norman P. Pendergrass,
Sr.; Adell T. Adams; Benjamin E. Adams, Sr.; Beatrice T.
McKnight, Plaintiffs-Appellants,
and
Mildred W. McDUFFIE; Sam Davis, for themselves and for
others similarly situated, Plaintiffs,
The CITY OF COLUMBIA, South Carolina, a public body
corporate; Robert D. Coble, individually and as Mayor of
the City of Columbia; E.W. Cromartie, II, individually and
as Mayor-Pro-Tem of the City of Columbia; Luther J.
Battiste, III, individually and as Mayor-Pro-Tem of the City
of Columbia; Francenia B. Heizer; Jim D.N. Papadea; Anne
M. Sinclair; Osborne Hamilton, Jr., individually and as
members of the Columbia City Council; Marsha Duffy,
individually and as Chairperson of the City of Columbia
Election Commission; Andrew J. Lewis; John E. Montgomery,
individually and as members of the City of Columbia Election
Commission, Defendants-Appellees,
and
Tony L. MYERS; Joseph S. Azar, individually and as
candidates for Columbia City Council, Defendants.
NATIONAL ASSOCIATION FOR THE ADVANCEMENT
OF COLORED PEOPLE,
INC., a New York nonprofit corporation; Columbia, South
Carolina Branch of the NAACP, Inc.; Norman P. Pendergrass,

Sr.; Adell T. Adams; Benjamin E. Adams, Sr.; Beatrice T.

Mcknight, Plaintiffs-Appellees,
and
Mildred W. McDUFFIE; Sam Davis, for themselves and for
others similarly situated, Plaintiffs,
The CITY OF COLUMBIA, South Carolina, a public body
corporate; ROBERT D. COBLE, individually and as Mayor of
the City of Columbia; E.W. CROMARTIE, II, individually and
as Mayor-Pro-Tem of the City of Columbia; Luther J.
Battiste, III, individually and as Mayor-Pro-Tem of the City
of Columbia; Francenia B. Heizer; Jim D.N. Papadea; Anne
M. Sinclair; Osborne Hamilton, Jr., individually and as
members of the Columbia City Council; Marsha Duffy,
individually and as Chairperson of the City of Columbia
Election Commission; Andrew J. Lewis; John E. Montgomery,
individually and as members of the City of Columbia Election
Commission, Defendants-Appellants,
and
Tony L. MYERS; Josephs. Azar, individually and as
candidates for Columbia City Council, Defendants.
Nos. 93-2255, 93-2319.

United States Court of Appeals, Fourth Circuit.

Aug. 22, 1994.

Appeals from the United States District Court for the District of South
Carolina, at Columbia. Joseph F. Anderson, Jr., District Judge. (CA-92914-3-17)
ARGUED: Laughlin McDonald, AMERICAN CIVIL LIBERTIES
UNION FOUNDATION, INC., Atlanta, GA, for Appellants.
Katherine Inglis Butler, University Of South Carolina School of Law,
Columbia, S.C., for Appellees.
ON BRIEF: Willie Abrams, Dennis Courtland Hayes, NAACP Special

Contribution Fund, Baltimore, MD; John Roy Harper, II, Columbia, SC,
for Appellants.
Helen T. McFadden, Jenkinson, Jenkinson & McFadden, P.A., Kingstree,
SC; Roy D. Bates, Columbia, SC, for Appellees.
D.S.C.
AFFIRMED.
Before RUSSELL, WIDENER, and HALL, Circuit Judges.
OPINION
PER CURIAM:

This appeal arises from a voting rights action brought by the NAACP and three
black voters of Columbia, South Carolina ("plaintiffs"), challenging Columbia's
so-called "4-2-1" method of electing members of the Columbia City Council
("City Council") under Section 2 of the Voting Rights Act, 42 U.S.C. Sec.
1973. Pursuant to this method, four of the City Council's seven members are
elected from single-member districts, two of which are majority white and two
of which are majority black. The remaining three members, including the
mayor,1 are elected at-large. Although black candidates have frequently run for
the at-large City Council seats, none has ever been elected. Plaintiffs thus
contend that the election of two City Council members at-large dilutes the
voting strength of blacks in violation of Section 2 of the Voting Rights Act.

This action represents the second challenge to Columbia's method of electing its
City Council. In the first case, Washington v. Finlay, No. 77-1791 (D.S.C. Mar.
24, 1980), plaintiffs contended that Columbia's then completely at-large
method of electing its City Council violated the Voting Rights Act. The district
court disagreed, finding that Columbia's pure at-large system did not
unconstitutionally dilute the voting strength of blacks. This court affirmed the
district court's decision in Washington v. Finlay, 664 F.2d 913 (4th Cir.1981),
cert. denied, 457 U.S. 1120 (1982).

While Finlay was pending, two efforts were made, through local referendums,
to adopt an election method more favorable to blacks. The first, the so-called
"3-3-1" plan, was defeated, as was the second proposal, the so-called "6-2-1"
plan. After prevailing on appeal in Finlay, Columbia's leaders held a third
referendum, this time on the current "4-2-1" plan, which the voters approved in

December 1981. Columbia held the first elections under the "4-2-1" plan in
1983. In this election, two black representatives were elected to the City
Council from the predominantly black districts. The record indicates that these
same individuals have continuously occupied these two seats since their
election in 1983.
4

The district court conducted a bench trial in the instant case and found that
plaintiffs failed to prove a violation of Section 2 of the Voting Rights Act
because they did not satisfy the three preconditions for Section 2 liability set
out in Thornburg v. Gingles, 478 U.S. 30 (1986). In the alternative, the district
court found that even if plaintiffs had satisfied the Gingles preconditions,
plaintiffs still would not prevail because they failed to show that under the
totality of the circumstances blacks have less opportunity than others in the
electorate to elect candidates of their choice. Plaintiffs now appeal to this court.

Citing the Supreme Court's recent decision in Johnson v. De Grandy, 114 S.Ct.
2647 (1994), plaintiffs contend, among other things, that the district court
improperly included in its analysis of the totality of the circumstances the
observation that black control of two of the seven City Council seats provides
blacks representation that "compares favorably" with their share of Columbia's
total population. The De Grandy Court, however, held that evidence indicating
that minority voters form voting majorities in a number of voting districts
roughly proportional to their respective share of the appropriate population is
relevant, though not dispositive, of whether minority voters have less
opportunity than other members of the electorate to elect representatives of
their choice. De Grandy, 114 S.Ct. at 2661-62. We accordingly reject plaintiffs'
contention.

We do, however, find that the district court's statement that "when an electoral
system has resulted in near proportional representation for a protected group, it
cannot violate Section 2," City of Columbia, 850 F.Supp. at 428, conflicts with
the Supreme Court's holding in DeGrandy that proportionality, by itself, is not
dispositive of a Section 2 claim. De Grandy, 114 S.Ct. at 2661-62.
Accordingly, we affirm on the district court's primary reasoning that plaintiffs
failed to satisfy the three Gingles preconditions.2
AFFIRMED AS MODIFIED

The mayor, as a regular legislative member of the City Council, may vote on
matters before the Council just as other Council members do

Defendants contend on cross-appeal that the district court improperly denied its
motion to join a class representative as a Rule 19(a) party. We need not address
this contention, however, because defendants seek no relief from this alleged
error